CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. (a) Upon the effectiveness of the Merger, all of the shares of capital stock of the Resulting Company issued and outstanding immediately prior to the effectiveness of the Merger ("Company Stock") shall, by virtue of the Merger and without any action on the part of the holder thereof but subject to the effectiveness of the Merger, automatically be converted into the right to receive, without interest,
(i) an aggregate of $20,998,500 in cash,
(ii) an aggregate of 1,105,184 shares of common stock, par value $.001 per share, of UniCapital ("UniCapital Stock") (the consideration referred to in clauses (i) and (ii), all of which is to be distributed to the Stockholders on the Merger Effective Date in the percentages set forth on Annex II, subject to Article 4 hereof, is referred to in this Agreement as the "Effective Date Consideration"); provided, however, in the event that the aggregate value (based on the IPO price of the UniCapital Stock) of the 1,105,184 shares of UniCapital Stock is less than $16,577,760, then the Company shall issue additional shares to the Stockholders so that the aggregate value of the shares of UniCapital Stock equals $16,577,760 (with appropriate adjustment to the cash and stock components of the Effective Date Consideration so as to eliminate fractional shares), and
(iii) the Earn-Out Consideration as described in Section 2.5, to be distributed to the Stockholders within five business days after each date of determination of a portion of the Earn-Out Consideration with respect to a given calendar year (if any) in the percentages set forth on Annex II.
(b) Upon the effectiveness of the Merger, each share of capital stock of Newco issued and outstanding immediately prior to the effectiveness of the Merger shall, by virtue of the Merger and without any action on the part of the holder thereof, automatically be converted into one fully paid and non-assessable share of common stock of the Surviving Corporation, all of which converted common stock shall constitute all of the outstanding shares of capital stock of the Surviving Corporation immediately after the effectiveness of the Merger.
(c) The Effective Date Consideration and the Earn-Out Consideration are referred to together in this Agreement as the "Merger Consideration."
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. (a) Upon the effectiveness of the Merger, all of the shares of capital stock of the Company issued and outstanding immediately prior to the Effective Time ("Company Stock") shall, by virtue of the Merger and without any action on the part of the holder thereof, automatically be canceled and converted into the right to receive, without interest:
(i) an aggregate of $4,150,000.00 in cash;
(ii) that number of shares of common stock, par value $.001 per share, of UniCapital ("UniCapital Stock"), equal to $4,150,000 divided by the Merger Price (the consideration referred to in clauses (i) and (ii) of this Section 2.1(a), all of which is to be distributed to the Stockholders on the Closing Date as part of the Closing in the percentages set forth on Annex II, subject to Article 4 hereof, is referred to in this Agreement as the "Closing Date Consideration"). The "Merger Price" shall be equal to the average closing price of UniCapital Stock as reported by the New York Stock Exchange for the ten (10) trading days ending on and including the third trading day immediately prior to the Closing Date; and
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. At the Effective Time, by virtue of the Merger and without any action on the part of the Buyer Sub, the Company or the holder of any shares of capital stock of the Company or Buyer Sub:
(a) Each share of Company Stock (as defined in Section 2.2(a)) issued and outstanding immediately prior to the Effective Time shall be converted into and become the right to receive: (i) Twenty-Two and 33/100 Dollars ($22.33) per share (for an aggregate cash consideration to the Stockholders of $1,340,000) (the "CASH CONSIDERATION") and (ii) 83.33 shares of Buyer's restricted $0.001 par value common stock. It is expressly understood by the Parties hereto that $140,000 of the Cash Consideration shall be retained by Buyer and paid to Stockholders on January 7, 2005. It is understood that the purpose of this holdback is directly related to that certain billing dispute between the Company and SBC, which is reflected in the Footnotes to the Company's Financial Statements.
(b) Buyer shall issue to the Stockholders a promissory note in the amount of $300,000 in the form attached hereto as Exhibit "A."
(c) Buyer shall pay to Stockholders twenty-five percent (25%) of the Company's accounts receivable balance greater than 60 days old but less than 180 days old, as reflected in the Company's Financial Statements and Accounts Receivable Aging Report; it being understood that this amount shall be a maximum of $50,000.
(d) Buyer shall issue to the Stockholders a convertible promissory note in the principal amount of $750,000 (the "EARN OUT NOTE CONSIDERATION" in the form attached hereto as Exhibit "B" [the "CONVERTIBLE NOTE"], together with (a), (b), and (c) the "MERGER CONSIDERATION"), such note convertible into shares of Mobilepro's common stock pursuant to the terms therein.
(e) Notwithstanding anything to the contrary contained herein, no fractional shares of Buyer common stock will be issued in the Merger. If the Stockholder would have been entitled to a fraction of a share of Buyer common stock, he shall receive in lieu thereof cash (without interest) in an amount determined by multiplying the fractional share interest to Stockholder would otherwise be entitled (after taking into account all shares of Company Stock owned by such holder at the Effective Time) by $0.20.
(f) The shares of Mobilepro's common stock issued upon conversion of the Convertible Note will not have been registered and will be deemed to be "restricted securities" under federal securities laws and may not be res...
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. (a) At the Effective Time, by virtue of the Merger, and without any action on the part of Merger Sub or the Company or their respective Securityholders:
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. On the Merger Effective Date, all of the shares of capital stock and all of the rights to acquire equity interests of the Company, issued and outstanding immediately prior to the effectiveness of the Merger ("COMPANY STOCK") shall, by virtue of the Merger and without any action on the part of the holders thereof ("HOLDERS") but subject to the effectiveness of the Merger, automatically be converted into the right to receive an aggregate of Three Million Four Hundred Ninety-Nine Thousand Five Hundred Eighty-Eight Dollars ($3,499,588) in cash and/or promissory notes as provided on SCHEDULE 2.1 and in SECTION 2.2 (collectively, the "MERGER CASH"), plus Four Million Forty Thousand One Hundred Eighty-Seven (4,040,187) shares of unregistered common stock, no par value, of FASTNET ("FASTNET STOCK" and collectively with the Merger Cash, the "MERGER CONSIDERATION") as hereinafter provided. On the Merger Effective Date and in consideration of the Merger Consideration, each Holder will release the Company and the Surviving Corporation from any and all claims, damages, losses, liabilities, actions, suits, proceedings, demands, assessments, costs and expenses which such Holder had or may have against the Company or the Surviving Corporation, their officers, directors and representatives, excepting only in the case of Holders who are also employees of the Company, any claims for wages for the current payroll period as of the Merger Effective Date, the Holder Notes set forth in Section 9.10(c), and any other specifically identified obligations. The Company shall obtain such a written release from each Holder prior to the Merger Effective Date.
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. (a) Subject to the terms of Article 9 hereof, at the Effective Time, each issued and outstanding share of Common Stock and Preferred Stock of the Company (other than shares to be canceled in accordance with Section 2.1(c) below) (collectively, "Company Stock") shall, by virtue of the Merger and without any action on the part of the holder thereof but subject to the effectiveness of the Merger, automatically be converted into the right to receive, without interest, such number of shares of Parent Common Stock equal to the quotient of two million (2,000,000) shares of Parent Common Stock (the "Merger Consideration"), divided by the total number of shares of Company Stock outstanding immediately prior to the Effective Time on a fully-diluted basis (assuming for such purpose the exercise of all then outstanding options, warrants, conversion rights, commitments or other rights to acquire shares of the Company's capital stock, whether vested or unvested) (such fraction, the "Conversion Number").
(b) At the Effective Time, each share of capital stock of Newco issued and outstanding immediately prior to the effectiveness of the Merger shall, by virtue of the Merger and without any action on the part of the holder thereof, automatically be converted into one fully paid and non-assessable share of common stock of the Surviving Corporation, all of which converted common stock shall constitute all of the outstanding shares of capital stock of the Surviving Corporation immediately after the effectiveness of the Merger.
(c) Each share of Company capital stock owned by the Company immediately prior to the Effective Time shall be automatically canceled and extinguished without any conversion thereof and without any further action on the part of the Parent, Newco or the Company.
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. As of the Effective Time, by virtue of the Merger and without any action on the part of any party hereto or any Holder:
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. (a) Upon the effectiveness of the Merger, all of the shares of capital stock of the Company issued and outstanding immediately prior to the effectiveness of the Merger ("Company Stock") shall, by virtue of the Merger and without any action on the part of the holder thereof but subject to the effectiveness of the Merger, automatically be converted into the right to receive, without interest,
(i) an aggregate of Nineteen Million Four Hundred Fifteen Thousand Five Hundred Eighty Six Dollars ($19,415,586) in cash,
(ii) an aggregate of One Million Thirty-Five Thousand Eight Hundred Eleven (1,035,811) shares of common stock, par value $.001 per share, of UniCapital ("UniCapital Stock") (the consideration referred to in clauses (i) and (ii), all of which is to be distributed to the Stockholders on the Merger Effective Date in the relative amounts and percentages as set forth on Annex II, subject to Article 4 hereof, is referred to in this Agreement as the "Effective Date Consideration"); provided, however, in the event that the aggregate value (based on the IPO price of the UniCapital Stock) of the One Million Thirty-Five Thousand Eight Hundred Eleven (1,035,811) shares of UniCapital Stock is less than Fifteen Million Five Hundred Thirty-Seven Thousand One Hundred Sixty-Eight Dollars and Ninety Cents ($15,537,168.90), then the Company shall issue additional shares to the Stockholders so that the aggregate value of the shares of UniCapital Stock equals Fifteen Million Five Hundred Thirty-
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. At the Effective Time, all of the shares of capital stock of the Company issued and outstanding immediately prior to the Effective Time ("Company Stock") shall, by virtue of the Merger and without any action on the part of the holder thereof but subject to the effectiveness of the Merger, automatically be converted into the right to receive, without interest, the following:
(a) the Closing Shares (as defined below) to be delivered by Parent to the Stockholders at the Effective Time as set forth in Section 2.11 below (the "Closing Merger Consideration"); and
(b) such Common Earn-Out Shares (as defined below) and Preferred Earn- Out Shares (as defined below) (collectively, the "Earn-Out Shares") having an aggregate value of up to $35,000,000 (the "Contingent Merger Consideration," and collectively with the Closing Merger Consideration, the "Aggregate Merger Consideration"), calculated in accordance with Section 2.2 below.
CONVERSION OF CAPITAL STOCK; MERGER CONSIDERATION. (a) At the Effective Time, all of the shares of Target Common Stock issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, automatically be canceled and converted into the right to receive, without interest:
(i) an aggregate of four million two hundred sixty thousand (4,260,000) shares of common stock, par value $0.01 per share of Parent ("Parent Common Stock") allocated among the Stockholders as set forth on Annex I attached hereto (the consideration referred to in this clause (i) of this Section 2.1, the "Closing Date Consideration"); and
(ii) the Earn-Out Consideration as described in Section 2.5 and payable in accordance with the provisions of Section 2.5.
(b) The Closing Date Consideration and the Earn-Out Consideration are referred to together in this Agreement as the "Merger Consideration."
(i) At the Effective Time, Target's obligations with respect to each outstanding option, as set forth on Schedule 2.1(c) hereto (the "Assumed Options"), to purchase shares of Target Common Stock issued pursuant to Target's 2000 Stock Option Plan (the "Target Option Plan"), whether vested or unvested, shall, by virtue of the Merger and without any action on the part of the holder thereof, automatically be assumed by Parent under its 1998 Stock Incentive Plan. Unless otherwise elected by Parent prior to the Effective Time, Parent shall make such assumption in such manner that (i) Parent is a corporation "assuming a stock option in a transaction to which Section 424(a) applies" within the meaning of Section 424 of the Code or (ii) to the extent that Section 424 of the Code does not apply to such Assumed Option, Parent would be such a corporation were Section 424 of the Code applicable to such Assumed Option; and, if not so otherwise elected, after the Effective Time, all references to the Target Option Plan shall be deemed to refer to Parent's 1998 Stock Incentive Plan as of the Effective Time by virtue of this Agreement and without any further action.
(ii) Each Assumed Option shall continue to have, and be subject to, substantially similar terms and conditions (including vesting) as set forth in the Target Option Plan and each individual optionee's Option Agreement as in effect immediately prior to the Effective Time, except that (i) such Assumed Option shall be made part of Parent's 1998 Stock Incentive Plan, (ii) each such Assumed Option to purchase one share of Targe...
